Citation Nr: 1147384
Decision Date: 12/30/11 Archive Date: 01/09/12
DOCKET NO. 08-39 463 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for residuals of a left ankle injury (a left ankle disability).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L.M. Yasui, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1987 to December 2007.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
FINDING OF FACT
The Veteran's current left ankle disability did not have onset during active service and is not otherwise etiologically related to his active service.
CONCLUSION OF LAW
The criteria for service connection for a left ankle disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303 (2011).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2011). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
As in all claims for service connection, it is the Board's duty to assign probative value to the evidence and then to weigh the evidence favorable to the veteran's claim against the evidence unfavorable to the veteran's claim. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has the "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). If the favorable evidence outweighs the unfavorable evidence or if the favorable and unfavorable evidence are in relative equipoise, the Veteran's claim must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102 (2011).
A service treatment report from September 1989 indicated that the Veteran injured his foot when he "wacked another foot while playing soccer." Upon examination, the Veteran had minimum tenderness to his instep and could bear weight with minimum pain. He was diagnosed with a contusion of the left foot and was treated with aspirin for pain with no running for at least three days.
The associated radiologic consultation request/report revealed that the left ankle had no evidence of acute fracture, dislocation or degenerative changes. Also, there were no joint effusions or soft tissue calcifications seen at that time, providing evidence against this claim.
In July 1993, a service treatment report indicated that the Veteran again injured his left foot while playing softball. Significantly, he was not assessed with a left ankle disability. Instead, he was treated with Bengay and Tylenol and told to return to seek medical care if it did not recover.
Importantly, there are no other service treatment records demonstrating a chronic left ankle problem or complaints of, or treatment for, a left ankle disability. A report of medical history from October 1993 (merely four years after the injury from September 1989) revealed that the Veteran did not have or had ever had swollen or painful joints or foot trouble. In January 2005, a pre-deployment health assessment report indicated that the Veteran's general health was "excellent," he did not have any medical or dental problems, and he did not have any questions or concerns about his health at that time, providing factual evidence against his own claim.
In addition, another report of medical examination from January 2005 revealed that the Veteran had normal clinical evaluations of all of his systems, including his lower extremities (excluding feet), and except for his skin. An associated report of medical history indicated that the Veteran did not have or had ever had foot trouble, impaired use of arms, legs, hands, or feet, or swollen or painful joints.
While a service treatment report from September 1989 indicated a left foot injury, it appears that this problem was resolved as evidenced by the normal, subsequent medical examinations in service, including the Veteran's own reports of medical history, indicating no persisting, left ankle problems. In short, these service treatment records, overall, provide some evidence against the Veteran's claim as they tend to show an acute left foot problem which was resolved.
Post service, the Veteran's private treatment records indicated that he was treated for bilateral ankle pain in November 2008. At that time, he was variously diagnosed with pes planus with stage 2 tibias posterior tendon, sinus tarsitis secondary to the rearfoot aversion, and minimal plantar calcaneal enthesophyte.
In August 2009, the Veteran underwent a VA examination of his joints. He complained of left ankle pain during the past four to five years. Radiologic testing of the left ankle revealed no fracture or dislocation. A tiny plantar spur was seen and there was also a spur at the attachment of the Achilles tendon. However, there was no joint effusion at the ankle joint. After a complete physical examination of his left ankle, the examiner diagnosed him with posterior tibialis tendinitis and sinus tarsitis. Further, the examiner noted that there was no intrinsic pathology found.
The examiner ultimately opined that the Veteran's "current complaint of left ankle condition is not related to the left foot injury that occurred while on active duty." He explained that there was nothing in the service medical records indicating treatment for an intrinsic left ankle problem and indeed, there were no records indicating treatment for left ankle pain while on active duty. Further, the examiner noted that the Veteran's periodic physical examinations indicated no complaints of a left ankle injury or condition. Instead, the examiner attributed the Veteran's left ankle pain to posterior tibialis tendinitis/dysfunction with a sinus tarsitis, secondary to rear foot aversion and stated that the Veteran's left foot condition is less likely related to the in-service soccer injury.
This medical opinion is found to be highly probative evidence against the Veteran's claim for service connection for a left ankle disability as it not only fails to establish the requisite nexus between the Veteran's current left ankle disability and his active service, it contradicts that relationship. Indeed, the VA examiner provided an explanation for his medical opinion, which was clearly based on a review of the Veteran's relevant history.
Taking into consideration the VA examiner's opinion, service treatment records, and post-service medical records, service connection for a left ankle disability is not warranted. The evidence against this claim outweighs the evidence in support of this claim, including the contentions of the Veteran.
The Board notes the lay statements and testimony provided by the Veteran during the Decision Review Officer (DRO) hearing in March 2009. He has consistently contended that his left ankle disability is related to his active service and that the left foot injury in September 1989 while he was on active duty was in fact, a left ankle sprain. See August 2009 Examination Report. However, laypersons, such as the Veteran, are generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997).
In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) stated that lay evidence is competent and sufficient in certain instances related to medical matters. Specifically, the Federal Circuit commented that such instances include establishing a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Id. Similarly, the U.S. Court of Appeals for Veterans Claims has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007).
In this case, the Veteran's contentions regarding a relationship between his left ankle disability and his active service and a diagnosis of a left ankle sprain are not statements about symptomatology, an observable medical condition, or a contemporaneous medical diagnosis. Rather, these contentions are statements of causation and medical diagnosis which is not contemporaneous. Such statements clearly fall within the realm of opinions requiring medical expertise. The Veteran has not demonstrated any such expertise. Hence, his contentions are not competent medical evidence of the cause of the claimed disability and are entitled to low probative value.
In short, based on the above, the in-service and post-service medical evidence, to include the medical opinion of the August 2009 VA examiner (which are found to provide evidence against this claim) are more probative than the Veteran's assertions as to whether his current left ankle disability is related to his service.
Of significance, the Board notes that the Veteran is competent to state that he has had pain since his discharge from service nearly four years ago, an assertion he has repeatedly made during the March 2009 DRO hearing and his medical examinations of record; this is not in dispute. See DRO hearing transcript at 3; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony is competent to establish the presence of observable symptomatology). However, the positive evidence (his statements) must be weighed against the evidence unfavorable to his claim (the service treatment records, the post-service treatment records, the VA medical opinion, and, most importantly, some of the Veteran's own prior statements), all of which provide highly probative evidence against these claims, indicating a problem that began years after service with no connection to service.
Although the Veteran may be competent to make these assertions regarding pain in his left ankle, the fact that he failed to note this problem until years after service, approximately four years after discharge from active duty, provides highly probative evidence against his claims. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran's entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints).
Hence, the contemporaneous in-service record showing a one-time injury to the left foot, normal clinical evaluations of the lower extremities, periodically, throughout the Veteran's service, the lack of the reporting of post-service pathology of a left ankle disability until approximately four years after service, and the VA medical opinion against the Veteran's claims, all clearly outweigh the Veteran's recollection of events regarding continuity of symptomatology.
Based on the above, the preponderance of the evidence of record is against a grant of service connection for a left ankle disability, and his claim must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2011).
Duties to Notify and Assist
The Board is required to ensure that VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2008). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in March 2008. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim.
ORDER
The appeal is denied.
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JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs